Postal Telegraph Cable Co. v. Southern Ry. Co.

• Decision Date: 23 March 1903
• Citation: 122 F. 156
• Parties: POSTAL TELEGRAPH CABLE CO. v. SOUTHERN RY. CO. SOUTHERN RY. CO. v. POSTAL TELEGRAPH CABLE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

122 F. 156

POSTAL TELEGRAPH CABLE CO. v. SOUTHERN RY. CO.

SOUTHERN RY. CO. v. POSTAL TELEGRAPH CABLE CO.

United States Circuit Court, W.D. North Carolina.

March 23, 1903

J. R McIntosh, for plaintiff.

A. L Holladay, for defendant.

SIMONTON Circuit Judge.

This case again comes up to strike from the files of the court the exceptions taken by the defendant, the Southern Railway, to the report of Messrs. Scales, Walker, and Hodgin commissioners, filed with the clerk of this court on the 21st April, 1899. This report assessed the damages to the defendant caused by the condemnation of the right of way on its road by the plaintiff. The motion further asks that the said report by affirmed.

Numerous exceptions were filed to this report on behalf of the defendant. A large majority of them have heretofore been considered and ruled upon by the court. It is necessary at this time to discuss but one, as this goes to an essential point. That exception, in effect, is that under the law and practice of the United States courts no issue of fact in a case at law can be decided except by the verdict of a jury unless both parties agree otherwise; that in this case the issue of fact, to wit, the amount of damages to be assessed, has been decided by three commissioners, the defendant in no wise assenting thereto; so the finding, being contrary to the law and practice of this court, must be set aside.

By the Code of North Carolina of 1883, Sec. 2007, any telegraph company incorporated in any state is authorized to construct, maintain, and operate lines of telegraph along any railway or other public highway in the state of North Carolina, so, however, as not to obstruct or hinder the usual travel on such railroad or highway. Section 2009 gives the right to condemn such right of way. Section 2010 provides the method in which such condemnation should begin, to wit, by petition filed in the superior court of the county in which the lands are situated, or through which the easement extends, describing the same, making the claimant of the land or easement a party defendant, with the provision that, if the right claimed is over an easement or right of way extending into or through more than one county, the controversy can be adjusted in one county into or through which the easement extends. Section 2012 provides that proceedings for the condemnation of lands, or any easement, or interest therein, for the use of telegraph companies, appraisement of the lands, or interest therein, the duty of commissioners of appraisal, the right of either party to file exceptions, the report of commissioners, the mode and manner of appeal, the power and authority of the court or judge, the final judgment and the manner of its entry and enforcement, and the rights of the company pending the appeal, shall be as prescribed in the chapter of which this section forms a part for condemning lands to the use of railways. This chapter is chapter 49 of this Code. The effect of this reference to that chapter is the same as if every one of the sections prescribed in the proceedings and all matters appertaining to the condemnation of property were repeated in this section, and made a part thereof. Among other things, this chapter provides (section 1945) that upon hearing the petition and proofs, the court, if no sufficient cause to the contrary be shown, shall make an order for the appointment of three disinterested and competent freeholders, residents in the county where the premises are to be appraised. Section 1946 provides that these commissioners, having been sworn fairly and impartially to appraise the lands mentioned in the petition, may examine witnesses, reduce the testimony to writing, and ascertain and determine the compensation which should be justly made to the party whose property is condemned. They shall report the same to the court, which shall hear the same, and any exceptions thereto, with a right of appeal up to the Supreme Court. The court hearing the return and exceptions may direct a new appraisement, modify or confirm the report, or make such order in the premises as may seem right and proper.

In the case at bar the Postal Telegraph Cable Company filed its petition praying condemnation of the right of way over the Southern Railway in the superior court of Guilford county, N.C., on the 11th June, 1898. On the 22d June, 1898, the Southern Railway Company filed its petition for the removal of the case into this court. The Supreme Court of the United States seems to have settled the question of removal of cases of this character. It holds that they may be removed if there by a diversity of citizenship. Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup.Ct. 1113, 29 L.Ed. 319; and Searl v. School District No. 2, 124 U.S. 199, 8 Sup.Ct. 460, 31 L.Ed. 415. The cause having been removed, this court, pursuing the method in such cases made and provided by the statute of North Carolina, heard the petition and all exceptions thereto, and, after hearing and passing upon them, made an order providing for the appointment of three disinterested and competent freeholders residing in the county of Guilford to ascertain and determine the compensation which ought justly to be made by plaintiff to defendant. These commissioners, having been appointed, and their appointments confirmed, were sworn, and proceeded to act, and have made a report of their proceedings and conclusion filed, as has been said, on the 21st April, 1899. Very much litigation has attended these proceedings at every step. Many exceptions have been filed by the defendant, covering every stage of the case. Objections, many of which have been considered and overruled, are presented again to the court. Plaintiff now moves to strike these exceptions from file. This will not be done. The exceptions are evidently intended to assist an appellate court in reviewing the whole action of this court.

As has been said, however, but one exception will now be considered, as that goes to the essence of the controversy. That exception is that under the law and practice of this court a defendant is entitled to a verdict of a jury on an issue of fact, to wit, the amount of compensation to which the defendant is entitled for the right of way condemned. The question thus made is not without difficulty. It is made in a case removed from the state court into this court. The precise point has never been decided by the Supreme Court. The right which the plaintiff is seeking to enforce is derived from, and is wholly dependent upon, the sovereign right of eminent domain of the state of North Carolina. This right, for special purposes, has been delegated by the state to telegraph companies of which plaintiff is one. And the notice that the right is delegated to telegraph companies to condemn the right of way of a railroad company is given by this statute to all railroad companies, foreign or domestic, owning or acquiring a right of way in North Carolina. In thus delegating its authority the state has carefully and specifically set out in detail how it shall be instituted, how exercised, how controlled, and how corrected. The state has declared that the assessment shall be made by freeholders resident in the state and in the county where the property lies or through which it passes. Unquestionably, the state could do this. She was exercising a sovereign right. She was dealing with a title of land within the state, was legislating how such title could pass. No one can question her right in this regard. The exception now made by defendant requires this court, in giving force and effect to this delegation of authority by the state of North Carolina, to adopt an essentially different method. It seeks to have the appraisement made by a jury, not necessarily freeholders, and drawn from the body of the district, and not necessarily residents in any county through which the right of way passes. May it not be said that, the statute of North Carolina having thus prescribed in full the method in which a telegraph company can exercise the right of eminent domain, its directions must be strictly pursued, else the proceedings will not be within the statute or under the statute. As was said in East Tenn., V. & Ga. R.R. Co. v. So. Tel. Co., 112 U.S. 310, 5 Sup.Ct. 169, 28 L.Ed. 746-- a similar case:

'This is a proceeding under the statute of Alabama to ascertain the amount of compensation to be paid the railroad company for the appropriation of its property to the uses of a telegraph company. That is the single question to be settled. The remedy is statutory only, and every court which takes jurisdiction of its enforcement is limited in its powers by the statute, and under which alone it can act.'

The plaintiff began its proceedings in the state court under the state statute. The defendant sought and obtained the removal of the case into this court despite the opposition of the plaintiff. Must the court go on, and administer the state statute according to its terms, or must it employ its own methods? Can it submit the assessment of damages to commissioners, as required by the state statute, or must this question go to a jury?

It must always be kept in mind that this is a case removed from the state court. In Mineral, etc., R. Co. v. Detroit, etc Copper Co. (C.C.) 25 F. 518, we find a motion to remand a case for condemnation of land removed from a state court, accompanied by a motion for the appointment of three commissioners, as provided in the state statute. The motion to remand was refused, and the case was ordered to proceed in the manner provided in the state statute. In Colorado Midland R. Co. v. Jones (C.C.) 29 F. 193, it was held that proceedings for condemnation are removable even...